1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 3:19-cv-4980 FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Nicholas Espíritu (SBN 237665) NATIONAL IMMIGRATION LAW CENTER 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010 Telephone: (213) 639-3900 Fax: (213) 639-3911 [email protected]Antionette Dozier (SBN 244437) WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Tel: (213) 487-7211 Fax: (213) 487-0242 [email protected]Martha Jane Perkins (SBN 104784) NATIONAL HEALTH LAW PROGRAM 200 N. Greensboro Street, Ste. D-13 Carrboro, NC 27510 Tel.: (919) 968-6308 Fax: (919) 968-8855 [email protected]Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LA CLÍNICA DE LA RAZA; CALIFORNIA PRIMARY CARE ASSOCIATION; MATERNAL AND CHILD HEALTH ACCESS; FARMWORKER JUSTICE; COUNCIL ON AMERICAN ISLAMIC RELATIONS-CALIFORNIA; AFRICAN COMMUNITIES TOGETHER; LEGAL AID SOCIETY OF SAN MATEO COUNTY; CENTRAL AMERICAN RESOURCE CENTER, and KOREAN RESOURCE CENTER Plaintiffs, v. Case No. 4:19-cv-4980 FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case 4:19-cv-04980-PJH Document 161 Filed 05/20/20 Page 1 of 58
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Case No. 3:19-cv-4980FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Nicholas Espíritu (SBN 237665) NATIONAL IMMIGRATION LAW CENTER 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010 Telephone: (213) 639-3900 Fax: (213) 639-3911 [email protected]
Antionette Dozier (SBN 244437) WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Tel: (213) 487-7211 Fax: (213) 487-0242 [email protected]
Martha Jane Perkins (SBN 104784) NATIONAL HEALTH LAW PROGRAM 200 N. Greensboro Street, Ste. D-13 Carrboro, NC 27510 Tel.: (919) 968-6308 Fax: (919) 968-8855 [email protected]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
LA CLÍNICA DE LA RAZA; CALIFORNIA PRIMARY CARE ASSOCIATION; MATERNAL AND CHILD HEALTH ACCESS; FARMWORKER JUSTICE; COUNCIL ON AMERICAN ISLAMIC RELATIONS-CALIFORNIA; AFRICAN COMMUNITIES TOGETHER; LEGAL AID SOCIETY OF SAN MATEO COUNTY; CENTRAL AMERICAN RESOURCE CENTER, and KOREAN RESOURCE CENTER Plaintiffs, v.
Case No. 4:19-cv-4980 FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
Case 4:19-cv-04980-PJH Document 161 Filed 05/20/20 Page 1 of 58
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DONALD J. TRUMP, in his Official Capacity as President of the United States; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; KENNETH T. CUCCINELLI, in his Official Capacity as Senior Official Performing the Duties of the Director of U.S. Citizenship and Immigration Services; and CHAD WOLF, in his Official Capacity as Acting Secretary of the Department of Homeland Security, Defendants.
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-1- Case No. 19-4980FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION
1. President Donald J. Trump is determined to prevent immigrants of color from
coming to and remaining in the United States. As part of this broad effort, the administration has
promulgated a “public charge” regulation, which erects hurdles to family-based immigration that
Congress has not authorized. This unlawful regulation harms and specifically targets immigrants
of color.
2. Defendants’ “public charge” regulation (“Regulation”) violates the Administrative
Procedure Act (“APA”) and the equal protection guarantee of the Fifth Amendment to the U.S.
Constitution. The Regulation is squarely at odds with the language of the statute, its century-long
interpretation, and Congress’ purpose in enacting the statute. It is arbitrary and capricious and
motivated by animus toward non-white immigrants. It also was promulgated and developed by
administration officials appointed in contravention of the Federal Vacancies Reform Act
(“FVRA”) and the statute and regulations prescribing the order of succession for appointing an
acting Secretary of Homeland Security. Those officials were therefore without authority to
promulgate and otherwise contribute to the Regulation.
3. The Immigration and Nationality Act (“INA”) bars certain individuals from
obtaining a green card or from obtaining certain visas if they are “likely at any time to become a
public charge.” Since Congress first introduced the term in the immigration context in 1882,
“public charge” has been understood to mean only a person who is primarily dependent on the
government to avoid destitution (i.e., someone who is effectively a “charge” or ward of the state).
From its first use in the immigration laws, “public charge” was included alongside other grounds
of inadmissibility that necessitate reliance on the government to avoid destitution, such as
“paupers,” “professional beggars,” and “insane persons.” Congress has never altered the long-
standing meaning of “public charge” as articulated by the courts and administrative agencies.
“Public charge” has never been understood to reach immigrants who, like a near-majority of
citizens born in the United States, may at some point in their lives receive supplemental health
care, nutrition, or housing assistance to improve their lives and those of their families.
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4. Acting unilaterally and without congressional approval, Defendants now deviate
from the established meaning of the term public charge, dramatically altering it to effect a sea-
change in immigration law. The Regulation treats as a public charge any immigrants found more
likely than not, at any time over their lifetime, to receive any amount of benefits from a wide range
of supplemental public benefits programs.
5. The targeted benefits include health care coverage (non-emergency Medicaid for
non-pregnant adults), housing assistance (Section 8 and public housing), and food assistance
(Supplemental Nutrition Assistance Program or “SNAP”). Indeed, nearly one in four U.S.-born
citizens (over 60 million individuals) participate in one or more of the programs listed in the
Regulation in any given year. Moreover, about one half of U.S.-born citizens can be expected to
use one of the programs listed in the Regulation at some point in their lifetime. Those who rely on
these programs include low- and moderate-income working families who depend primarily on
income from employment, but who receive supplemental benefits that improve their quality of life
and their communities. These non-cash programs, by design, help millions of citizens and
immigrants alike, enabling them to remain healthy and productive in communities where rents and
other costs of living are high. See 7 U.S.C. § 2011 (purpose of SNAP is “raising levels of
nutrition among low-income households” by spreading the “Nation’s agricultural abundance
and . . . economy”); 42 U.S.C. § 1437(f) (purpose of Section 8 vouchers is to help “low-income
families obtain[] a decent place to live” and to promote “economically mixed housing”).
6. In addition, the Regulation fundamentally distorts the totality-of-the-circumstances
test that the public charge statute prescribes. The Regulation sets forth a series of arbitrary factors
that are not reasonably related to whether a person is likely to become a public charge—including
English proficiency and credit scores. Most of the factors enumerated in the Regulation are
negatively weighted, significantly and arbitrarily tipping the scale in favor of finding an applicant
to be a public charge.
7. The Regulation also introduces a public charge determination against an entirely
new group—nonimmigrants seeking a change of status or an extension of their stay—making
those nonimmigrants who have received certain designated benefits generally ineligible for a
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change of status or extension, despite the agency’s acknowledgement that the public charge statute
does not apply to this group.
8. This Regulation fits squarely within a consistent pattern of racial discrimination in
this Administration’s immigration policies—including separating thousands of Central American
children from their mothers and fathers; refusing refuge to non-white immigrants seeking asylum;
attempting to end the Deferred Action for Childhood Arrivals program; terminating Temporary
Protected Status for nationals of several predominantly non-white countries; excluding individuals
from majority Muslim countries and expanding that ban to prevent substantial immigration from
multiple African nations; proposing a rule that would bar families from housing programs if any
family member is without eligible immigration status; and proposing a Regulation that would
apply the same overbroad definition of “public-charge” to deportability.
9. Defendants fail to provide adequate reasons for their dramatic changes to the public
charge policy, and they fail to explain how those changes are consistent with the statutory
language and the well-settled interpretation of that language. Defendants have acted in total
disregard of the Regulation’s effects on families, communities, and the nation. And the agency
has failed to respond adequately to the myriad concerns expressed in the over 260,000 comments
submitted.
10. Plaintiffs bring this lawsuit to enjoin the implementation of Defendants’ new public
charge Regulation in order to prevent irreparable harm to themselves and their communities.
Plaintiffs represent health care providers and other nonprofit organizations that seek to protect
access to health care, nutrition, housing, and other public benefits for immigrants, including
immigrants of color, regardless of their immigration status or financial means. The Regulation has
and will continue to divert Plaintiffs’ resources, both to address the harmful effects of the
Regulation and to educate immigrant families about those effects, preventing Plaintiffs from
carrying out other aspects of their missions and ensuring that their patients, members, and clients
do not forgo critical services to lead healthy, productive, and successful lives. Plaintiffs also
include legal service providers who assist clients that receive one or more of the public benefits
included in the Regulation, who meet several of the Regulation’s totality of the circumstance
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factors, and who will be subject to the Regulation when they seek to adjust to LPR status or
maintain or change their non-immigrant status. The Regulation also has and will continue to
affect Plaintiffs’ operations, such as by reducing patient and client caseloads as individuals cease
receiving benefits due to the Regulation or become ineligible for immigration relief. Plaintiffs
rely on caseloads for funding and goodwill, and their inability to serve their communities
frustrates their organizational missions.
11. The Regulation is impermissibly vague and complex, inviting arbitrary and
discriminatory enforcement by immigration officials. As a result, the regulation will cause
immigrant families, including those with U.S. citizen members, to disenroll from programs or to
forgo benefits for which they are eligible. Many of these immigrant families will not in fact be
subject to the public charge inquiry but will nonetheless disenroll due to fear or lack of
understanding of how the Regulation operates. The impacts of this chilling effect are far-reaching.
The Regulation not only will jeopardize the health of the affected immigrants, their children, and
other family members, but will also endanger public health by, among other things, increasing the
likelihood of untreated communicable disease, depriving essential community health providers of
Medicaid revenue, and creating food and housing instability. The Regulation will produce
negative health and economic outcomes nationwide over generations.
12. Indeed, the Regulation is already having a detrimental effect on public health since
it took effect on February 24, 2020. The novel coronavirus SARS-CoV-2 (“COVID-19”), which
has become a global pandemic, has afflicted over 1.5 million people in the United States, causing
a nationwide public health crisis. The President has declared a national emergency and all 50
states have made emergency declarations in order to take extraordinary measures to protect the
health and well-being of their residents. The Regulation, however, is deterring immigrants from
obtaining the health care—including testing and treatment—necessary to protect public health
along with the public benefits that will help them survive the economic crisis that COVID-19 has
caused.
13. Immigrants make up a substantial portion of essential workers on the frontlines of
the national, state, and local response to the crisis. These workers are more likely to be exposed to
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the virus and—without adequate testing and treatment—to suffer worse health outcomes if
infected. Infected workers wary of obtaining testing and treatment for symptoms of COVID-19
for fear that they will be penalized by the Regulation when adjusting status are also more likely to
inadvertently spread the virus to others. The Regulation thus threatens to worsen this
unprecedented public health and economic crisis.
14. Plaintiffs request that this Court hold unlawful and set aside the Regulation under
the Administrative Procedure Act, the Equal Protection guarantee of the Fifth Amendment to the
U.S. Constitution, the FVRA, and DHS’s organic statute, and that it enter an injunction barring
Defendants from implementing the Regulation.
PARTIES
I. Plaintiffs
15. Plaintiff LA CLÍNICA DE LA RAZA (“LA CLÍNICA”) is a Federally Qualified
Health Center whose mission is to improve the quality of life of the diverse communities it serves
by providing culturally appropriate, high-quality, and accessible health care for all. LA CLÍNICA
serves more than 86,000 patients annually in the San Francisco Bay Area and is one of the largest
community health centers in California, with a total of 35 clinical service and
support/administrative sites across three Bay Area counties.
16. LA CLÍNICA serves patients who may seek to extend or adjust their immigration
status, and whose immigration applications are likely to be subject to Defendants’ Regulation.
Many LA CLÍNICA patients receive Medicaid and other public benefits. A significant number of
LA CLÍNICA’s patients are low-income, have limited English proficiency, and/or have limited
skills and education. Many LA CLÍNICA patients also reside in large households. LA
CLÍNICA’s patients are predominantly people of color.
17. Defendants’ new Regulation will frustrate LA CLÍNICA’s ability to provide
accessible health care to the thousands of patients it treats each year. Because of the Regulation’s
chilling effect, many of LA CLÍNICA’s patients—and their families—are likely to avoid using
public benefits, including seeking health care services. Many of LA CLÍNICA’s patients will
either disenroll themselves and/or their family members from Medicaid based on the fear that
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using these benefits will hinder their ability to adjust status in the future. Other LA CLÍNICA
patients will cancel or refrain from scheduling medical appointments for fear that using health care
services could affect their ability to adjust status. This will harm immigrant patients and their
communities, whose health and well-being form a key part of LA CLÍNICA’s mission. It will
also severely harm LA CLÍNICA by significantly reducing LA CLÍNICA’s funding stream that is
linked to caseload while imposing substantial unbudgeted costs.
18. Plaintiff CALIFORNIA PRIMARY CARE ASSOCIATION (“CPCA”) brings this
action on behalf of its members, including member Asian Health Services, described below.
Formed in 1994, CPCA has become the statewide leader and a recognized voice in representing
the interests of California community health centers and their patients. CPCA represents Regional
Clinic Associations and 1,370 nonprofit community health centers (“CHCs”) that provide
comprehensive primary and preventive health services to low-income and uninsured patients in
California. CPCA’s membership consists of 157 CHC entities that work through more than 983
service delivery sites. CPCA’s members include community and free health centers, some
federally funded and federally designated health centers, rural and urban clinics, large and small
clinic corporations, and clinics dedicated to special needs and special populations.
19. CPCA’s members serve diverse populations and ensure that everyone has access to
health care regardless of their ability to pay, their immigration status, or their individual
circumstances. CPCA’s CHC members serve over 7.2 million California residents every year.
Approximately 70% of the CHCs’ patients are Latino, Asian Pacific Islander, or Black. CHCs
serve patients of various immigrant statuses, including immigrants who will be subject to the
public charge admission test when they seek to extend or change their nonimmigrant visas or
apply for lawful permanent residence.
20. Sixty-one percent of the patients served by CPCA’s members are enrolled in Medi-
Cal, the Medicaid program in California. This means that these CHCs serve more than 4 million
Medi-Cal enrollees, providing care to 1 in 3 Medi-Cal beneficiaries.
21. CPCA has brought this suit because its purpose is to promote the interests of its
members and its members will face significant financial harm as a result of the Regulation. CPCA
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expects CHCs’ patients will disenroll from public benefits, including Medi-Cal, because of the
changes to the public charge test. Specifically, CPCA predicts that as many as 101,000 to 305,000
of its members’ patients will disenroll from Medi-Cal as a result of the Regulation, causing the
CHCs to lose $56 to $170 million in Medi-Cal reimbursements. This will lead to an increase in
uninsured patients. CPCA anticipates that a number of these patients will continue seeking
services at CHCs, forcing the CHCs to incur increased costs serving uninsured patients while
experiencing a dramatic drop in revenue.
22. One of CPCA’s members, Asian Health Services (“AHS”), is a nonprofit
community health center headquartered in Oakland, California. AHS provides health services at
more than a dozen locations in Oakland and San Leandro, California and has 28,000 active
patients of all ages. AHS is a member in good standing of CPCA and has been a member since
1994, when CPCA was formed.
23. Founded in 1974, AHS’s mission is to serve and advocate for the medically
underserved, including the immigrant and refugee Asian community, and to ensure equal access to
health care for all, regardless of income, insurance status, immigration status, language, or culture.
As a federally qualified health center, AHS offers services to uninsured patients on a sliding fee
scale. Individuals with incomes below 100% of the federal poverty level receive most services at
no cost. Approximately 93% of AHS patients are Asian; 2% are Latino; and 2% are Black. In
addition, approximately 58% of AHS patients are not yet United States citizens. For 73% of
patients, English is not their primary language. Roughly two-thirds of AHS patients are enrolled
in Medi-Cal, which is the Medicaid program in California.
24. The Regulation will cause irreparable harm to many AHS patients and to AHS.
The Regulation will have a substantial chilling effect on AHS patients’ access to health care
and/or use of their health coverage. Some patients will stop receiving services altogether based on
fears about the effect on their or their children’s immigration status. Other AHS patients will
continue to receive services from AHS, but will decline to enroll in or will disenroll from Medi-
Cal due to the Regulation.
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25. As a result of the Regulation, AHS will incur significant financial loss. Medi-Cal
reimbursements account for 52% of AHS’s annual budget. AHS estimates that as its patients
disenroll from or decline to enroll in Medi-Cal, it will lose as much as $5.2 million in Medi-Cal
reimbursements every year. AHS will have no way to recoup the cost of the services provided to
those patients who disenroll but continue to receive services. In addition to losing Medi-Cal
funding, AHS will have to divert considerable resources to responding to the Regulation. For
example, AHS expects staff to spend time responding to individual patients’ questions and
concerns about enrolling in or remaining enrolled in Medi-Cal and/or CalFresh given the
Regulation. These efforts will leave staff members with less time to help patients enroll in health
coverage and SNAP, schedule appointments, and provide case management, referrals and care
coordination.
26. Plaintiff Maternal and Child Health Access (“MCHA”) works to ensure access to
quality and comprehensive health care for all, with a focus on perinatal care and child health.
MCHA works with low-income immigrant families who access services through California’s
SNAP program, California’s Medicaid program, and Section 8 housing. Since the 1990s,
MCHA’s purpose has been to support women and their families so they can be healthy and
financially independent. MCHA offers enrollment assistance programs to help people of all
genders and ages secure and navigate SNAP and health-care coverage, training and education for
organizations and individuals about eligibility for benefit programs for low-income and immigrant
families, plus home visits, weekly classes, and mental health supports to help families succeed.
27. The Regulation is frustrating MCHA’s mission by reducing access to nutrition,
medical care, and adequate housing. Immigrant families who MCHA serves are already
disenrolling from public benefit programs, such as SNAP and Medicaid, based on fears that using
those programs will affect their future immigration relief options. Women have refrained and will
continue to refrain from seeking health services, food, and other programs for themselves and their
children, based on fears that using those benefits will prevent them from adjusting status. As the
Regulation is implemented, MCHA expects even more women to refrain from seeking Medicaid
and other necessary health services, food, and other programs for themselves and their children,
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based on fears that using those benefits will prevent them from adjusting status. To support their
babies, pregnant women need, on average, an additional 300 calories per day. Yet MCHA already
sees women pulling themselves out of nutrition support programs based on fear of public charge
and anticipates even more SNAP disenrollments. Losing access to critical health and nutrition
services during pregnancy and early childhood could negatively affect MCHA’s clients for years.
28. Their clients’ disenrollment from health, housing, and nutrition programs will make
it difficult for MCHA to continue its operations. MCHA will be forced to shift its capacity and
divert its resources to respond to the Regulation instead of assisting clients with accessing public
benefits or other resources to which they are entitled. MCHA will need to identify alternative
forms of assistance for those who disenroll from benefit programs, develop and implement
additional measures so that mothers and families feel comfortable continuing to use MCHA’s
home-visitation program, and engage in substantial community education to try to combat the
Regulation’s chilling effect. In addition, MCHA will be forced to address client situations that
have worsened over time, such as prolonged malnutrition and delayed access to medical care.
These heightened client problems require additional staff time. To respond to the Regulation,
MCHA also needs to allocate staff members who can follow up with individuals who raise
concerns about the Regulation.
29. Plaintiff Farmworker Justice (“FJ”) is a national non-profit organization
representing farmworkers and their families across the country who perform agricultural work in
the United States. FJ’s mission is to empower migrant and seasonal farmworkers to improve their
living and working conditions, health, occupational safety, and access to justice. It also provides
policy analysis and advocacy, legal advocacy, training, and technical assistance to farmworkers,
attorneys, migrant health centers, and immigrant advocacy groups across the United States,
including in Texas, Arizona, Colorado, New Mexico, New Jersey, Georgia, Florida, New York,
Wisconsin, Missouri, Michigan, and California. FJ also hosts remote assistance, such as webinars
and conferences, reaching additional locations, such as Kansas, Iowa, Illinois, Puerto Rico, North
Carolina, South Carolina, Washington, Oregon, District of Columbia, Montana, Minnesota,
Nebraska, Oklahoma, Virgin Islands, Virginia, Maryland, Indiana, and Pennsylvania. FJ
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represents approximately 2.5 million farmworkers who work in the United States, as well as their
spouses and children who, combined, represent approximately 4.5 million individuals in the
United States. A large and growing number of farmworkers have H-2A non-immigrant visas,
which are for temporary agricultural workers.
30. The Regulation will disadvantage many farmworkers who seek to adjust to lawful
permanent resident (LPR) status or to obtain or extend their non-immigrant H-2A status. For
example, the Regulation penalizes individuals with low incomes, and farm laborers’ wages are
among the lowest in the nation. FJ also represents immigrant farmworker families who receive
Medicaid and SNAP, and who feel compelled by the Regulation to forgo those benefits in order to
remain eligible to adjust their status. Farmworkers are disenrolling eligible U.S. citizen children
from Medicaid due to fears that their children’s health care coverage will affect their ability to
seek immigration relief. They also fear that this may lead eventually to the forced separation of
their family and are not seeking health coverage or services at health centers for the same reasons.
31. The Regulation has forced FJ to divert substantial resources in order to develop and
disseminate information about the Regulation that addresses the farmworker communities’ needs.
Beginning in March 2020, FJ has been addressing concerns that farmworkers have about the
implications of the public charge Regulation when seeking to take action to prevent or treat
COVID-19. Spending considerable resources to address the Regulation has reduced the
organization’s ability to engage extensively in other issues that affect farmworker families and
advance FJ’s mission.
32. Plaintiff COUNCIL ON AMERICAN-ISLAMIC RELATIONS–CALIFORNIA
(“CAIR-CA”) is dedicated to enhancing the understanding of Islam, protecting civil rights,
promoting justice, and empowering American Muslims. CAIR-CA was established in 1994 and
has four offices throughout the state. CAIR-CA serves Arab, Middle Eastern, Muslim, and South
Asian (“AMEMSA”) communities. Among other activities, CAIR-CA provides direct
immigration assistance, including by helping AMEMSA communities with adjustment of status
applications.
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33. CAIR-CA has clients who are seeking or will seek to adjust their status in the
future. CAIR-CA also has clients who use public benefits, including Medicaid, public housing,
and SNAP. CAIR-CA’s clients have incomes at or below 250% of the Federal Poverty Level
(“FPL”). The Regulation is frustrating CAIR-CA’s mission to protect civil rights, promote justice,
and empower American Muslims. CAIR-CA will need to divert its resources in an attempt to
reduce the harm stemming from Defendants’ Regulation, forcing CAIR-CA staff members to
reduce their capacity in other areas that further CAIR-CA’s mission. Moreover, the Regulation is
causing many of the immigrant families that CAIR-CA serves to refrain from seeking
supplemental benefits or to disenroll from those programs, cutting off important services and
destabilizing their families and their communities. It also will decrease the number of
immigration cases CAIR-CA files, as clients will take longer to process due to the Regulation’s
complexity and may not qualify for relief or decide not to seek relief due to concerns over the
Regulation. This in turn will decrease CAIR-CA’s funding linked to case filings and may impact
its good will if it is not able to serve its community as effectively.
34. Plaintiff AFRICAN COMMUNITIES TOGETHER (“ACT”) is a national
membership organization of African immigrant members fighting for civil rights, opportunity, and
a better life for African immigrant families residing in the United States. ACT serves immigrant
families who are originally from Nigeria, Ghana, Liberia, Ethiopia, and other African nations. It is
a resource for African immigrants seeking legal assistance with immigration relief, including by
providing assistance with adjustment of status applications. ACT has approximately 3,000
members and serves clients from across the nation; in 2019 alone, it provided services to clients
from Alaska, Arizona, California, Colorado, Delaware, the District of Columbia, Florida, Georgia,
89. In fact, Congress has expanded immigrants’ access to some of the benefits that had
been explicitly excluded from the public charge determination. In the 2002 Farm Bill, for
example, Congress restored eligibility for food stamps (now known as “SNAP”) to immigrant
children, immigrants receiving disability benefits, and adults who had lived in the United States in
a “qualified” immigrant status for five years. Farm Security and Rural Investment Act of 2002,
Pub L. No. 107-171 (May 13, 2002). Significantly, despite legislating in the exact space of
benefits use and immigration, Congress did not undermine the Field Guidance’s explanation of the
longstanding definition, and consistent interpretation, of “public charge.”
90. Although Congress and administrative agencies have interpreted “public charge”
consistently since the term was first used, altering the definition of “public charge” has been a
clear priority from the early days of the Trump administration. During the President’s first month
in office, members of the administration drafted an executive order to reinterpret the term. That
executive order was leaked to the public. The administration never issued the executive order.
91. Instead, in 2017, the Trump Administration endorsed the Reforming American
Immigration for Strong Employment (“RAISE”) Act. That bill would have eliminated some of the
family-based admission preferences created by the 1965 Act and established a point-based system
for evaluating potential immigrants. The system would have awarded points based on factors
including age, formal education, English language proficiency, and highly-compensated
employment. The RAISE Act would have disadvantaged many groups of potential immigrants,
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including applicants who had family ties to U.S. citizens but who had limited formal education or
employment history and middle-aged and older adults.
92. In 2017, Congress once again rejected changes to the existing immigration system
and declined to pass the RAISE Act.
93. Subsequently, on October 10, 2018, the Department of Homeland Security
published its Notice of Proposed Rulemaking for the Regulation. This Regulation incorporated
many of the rejected changes from the RAISE Act under the guise of an expanded totality of
circumstances test for determining whether an individual was likely to become a “public charge.”
III. Defendants’ New Public Charge Regulation
94. On August 14, 2019, the Department of Homeland Security published the
Regulation.
95. The Regulation drastically redefines the term “public charge.” Under the
Regulation, “public charge” means a noncitizen “who receives one or more public benefits, as
defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-
month period.” Inadmissibility of Public Charge Grounds, 84 Fed. Reg. 41,292, 41,501 (Aug. 14,
2019) (codified as 8 CFR § 212.21(a)). Paragraph (b) defines “public benefit” to mean any receipt
of federal, state, local, or tribal cash assistance for income maintenance and includes receipt of
health assistance through Medicaid (with some exceptions); SNAP benefits; and housing
assistance through Section 8 housing choice vouchers, project-based Section 8 rental assistance, or
public housing. Several of these non-cash benefits were not included in prior agency definitions
of “public charge,” and were, in fact, specifically excluded. The Regulation counts all benefits
equally, regardless of the value of the benefit received.
96. The Regulation next defines the term “likely at any time to become a public
charge.” Id. (codified as 8 CFR § 212.21(c)); see 8 U.S.C. § 1182(a)(4)(A). Under the
Regulation, “[l]ikely at any time to become a public charge means more likely than not at any time
in the future to become a public charge, as defined [above], based on the totality of the alien’s
circumstances.”
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97. Under the Regulation, the totality of the circumstances determination is prospective
and looks to “all factors that are relevant to whether the alien is more likely than not at any time in
the future [to receive one or more public benefit for 12 months over a 36-month period].” 84 Fed.
Reg. at 41,502 (codified as 8 CFR § 212.22(a)). As prescribed by Section 1182(a)(4)(B), the
determination must consider, at minimum, the individual’s “age; health, family status, education
and skills, and assets, resources, and financial status.” 84 Fed. Reg. at 41,502 (codified as 8 CFR
§ 212.22(b)).
98. As to age, the agency must consider whether the noncitizen is between 18 and the
minimum retirement age for Social Security. Id. (codified as 8 CFR § 212.22(b)(1)).
99. With regard to health, the agency must consider whether the individual’s health,
including any diagnosed medical conditions, makes the individual more or less likely to be a
public charge. Id. (codified as 8 CFR § 212.22(b)(2)).
100. The Regulation next requires that the agency consider whether the individual’s
household size makes the individual more or less likely to become a public charge. Id. (codified
as 8 CFR § 212.22(b)(3)).
101. As to assets, resources, and financial status, the Regulation requires the agency to
consider, inter alia, whether the individual’s household’s annual gross income is at least 125% of
the FPL (100% for active duty military personnel). If it is under that amount, the agency must
consider whether the individual has “significant assets.” Id. (codified as 8 CFR § 212.22(b)(4)(i)).
The Regulation also requires the agency to examine whether the individual has sufficient assets
and resources to cover “any reasonably foreseeable medical costs”; has any financial liabilities;
and has applied for, been certified to receive, or received public benefits. Id.
102. As evidence, the agency must look to the noncitizen’s sources of income, other
assets and resources, credit score, whether the noncitizen has private health insurance, and whether
the noncitizen has applied for, been certified or approved for, disenrolled or requested to be
disenrolled from, or received public benefits. Id. at 41,503 (codified as 8 CFR § 212.22(b)(4)(ii)).
103. Finally, as to education and skills, the agency is to look to whether the noncitizen
“has adequate education and skills to either obtain or maintain lawful employment with an income
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sufficient to avoid being more likely than not to become a public charge,” including evidence of
past work history, education level, and English language proficiency. Id. (codified as 8 CFR
§ 212.22(b)(5)).
104. The Regulation selects a subset of factors to be “heavily weighted” in the
determination. Id. at 41,504 (codified as 8 CFR § 212.22(c)(1)). The Regulation adopts the
following “heavily weighted negative factors” under 8 CFR § 212.22(c)(1):
(A) The noncitizen is not a full-time student and is authorized to work, but is
unable to demonstrate current employment, recent employment history, or a
reasonable prospect of future employment;
(B) The noncitizen has received, or been certified or approved to receive, public
benefits for more than 12 months within any 36-month period;
(C) The noncitizen has been diagnosed with a medical condition that will
interfere with the alien’s ability to support him or herself and the noncitizen
is uninsured and has neither the prospect of receiving private insurance nor
the financial resources to pay for reasonably foreseeable expenses due to a
medical condition; and
(D) The noncitizen has previously been found inadmissible or deportable on
public charge grounds.
105. The Regulation includes as “heavily weighted positive factors”:
(A) The noncitizen’s “household has financial assets, resources, and support,”
excluding illegal activities or public-benefit income, of at least 250% of
FPL. Id. (codified as 8 CFR § 212.22(c)(2)(i)). That income threshold
equates to over $64,000 a year for a family of four, more than the median
household income for households of any size in the United States.
(B) The noncitizen is authorized to work and has a legal annual income of at
least 250 percent of the FPL for her household size; and
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(C) The noncitizen has private health insurance, excluding health insurance
subsidized by premium tax credits established by the Patient Protection and
Affordable Care Act.
106. The Regulation adds new, non-statutory factors for USCIS to consider in
evaluating the affidavit of support. USCIS must now also evaluate the sponsor’s annual income,
the sponsor’s relationship to the applicant, the likelihood that the sponsor will actually provide the
required financial support, “and any other related considerations.” Id. (codified as 8 CFR
§ 212.22(b)(7)).
107. The Regulation also requires applicants to compile extensive documentation of
their finances and to fill out a newly developed 15-page form that the agency estimates will
require 4.5 hours to complete.
108. The Regulation also applies a public charge test to an entirely new group of people:
nonimmigrant visa holders seeking to extend or change their visas. USCIS must evaluate whether
the person has received the designated benefits for more than 12 months in the aggregate within a
36-month period since obtaining their status.
109. During the notice and comment period, hundreds of thousands of comments were
submitted, “the vast majority” opposing the proposed Regulation, as acknowledged by the agency.
84 Fed. Reg. at 41,304. Commenters explained that the factors were not rationally related to
predicting the likelihood of a noncitizen becoming a public charge, were arbitrary and vague, and
would cause substantial negative effects.
110. For example, commenters criticized the proposed Regulation’s threshold of 15% of
the Federal Poverty Guidelines as the value of monetizable benefits a noncitizen could receive
over a 12-month period without being a public charge. According to several sets of commenters,
the threshold was far too low to show dependency on benefits and did not account for the taxes
that immigrants pay and the fact that they pay more into the healthcare system than they take out.
111. Rather than engage with these criticisms, the Regulation instead moved the
threshold from 15% to 0%, such that receipt of benefits of any value over the applicable time
period qualifies a noncitizen as a public charge. See 84 Fed. Reg. at 41,357–58. DHS did not
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explain how comments indicating the 15% threshold was too low justified an even lower
threshold, electing to simply call its final choice a better policy than its prior proposal.
112. The irrationality of this response is further compounded by the Regulation’s
counting of each month of each individual benefit received separately, such that receipt of 2
benefits for 6 months or 3 benefits for 4 months, regardless of value, will meet the threshold.
Thus, in response to comments that one year at 15% utilization was too low to show dependency
on benefits, the Regulation went lower as to both duration and percentage.
113. In addition, Defendants failed to adequately respond to comments related to the
potential retroactive application of the Regulation. Although Defendants repeatedly assert that the
Regulation will have no retroactive effect and implicates no reliance interests, Defendants failed to
adequately respond to concerns that the new Form I-944 asks applicants to list all benefits that the
applicant ever used and to list the dates of the use of those benefits even if they were used before
the effective date of the Regulation. If DHS does not intend to take past use of benefits into
account, there is no reason to ask for this information, yet DHS also claims that Form I-944
requests information “about all the relevant factors” for the public charge determination.
Inadmissibility of Public Charge Grounds, 84 Fed. Reg. at 41,483. Questions on the Form I-944
about past use of public benefits, which DHS simultaneously claims are relevant and not relevant
to the public charge determination, creates internal inconsistency and ambiguity about the
retroactive effect of the Regulation.
A. Impact of the New Regulation on Immigrants and Non-White Communities
114. Defendants’ Regulation will label as a “public charge” a very large percentage of
immigrants, including low-and moderate-income working families. In fiscal year 2017, 83% of all
immigrants who received green cards were subject to the public charge test.1 The remainder were
exempt under the statute.
1 See Randy Capps, et al., Gauging the Impact of DHS’s Proposed Public-Charge Rule on U.S. Immigration, Migration Policy (Nov. 2018), https://www.migrationpolicy.org/research/impact-dhs-public-charge-rule-immigration.
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115. While only roughly 2–4% of the noncitizen population would have qualified as a
public charge under the prior definition, the Regulation will now sweep in vast numbers of
individuals who, like millions of working Americans, will receive one or more of the
supplemental benefits listed in the Regulation over the course of a lifetime. Under a similar
definition of public charge, which applies to individuals seeking to enter the United States from
abroad, State Department findings of ineligibility on the basis of public charge increased from
1,076 in 2016 to 20,941 in 2019, a 946% increase. The increases have disproportionately affected
immigrants from predominantly non-white countries. For instance, ineligibility findings on public
charge grounds of intending immigrants from Mexico increased from 7 in 2016 to 5,343 in 2018.
Similarly, in 2018 the State Department denied 1,254 immigrant visas for Indian nationals after
denying none in 2016. And the State Department denied 1,109 immigrant visas to Haitian
nationals in 2018, after denying none in 2016. Meanwhile, only three Canadian nationals had
immigrant visas denied in 2018.2
116. In fact, the Regulation’s definition is so expansive that, if applied to U.S.-born
citizens, roughly half of the population would be characterized as “public charges,” simply
because they will receive one of the listed supplemental benefits at some point in their lifetimes.
117. The Regulation will also affect an estimated 2.3 million nonimmigrants with
temporary visas, including students and agricultural workers, who attempt to extend their visas or
change their non-immigrant status over a five-year period. The Regulation introduces an
unprecedented public charge inquiry and potential barrier for these groups. See DHS, RIN: 1615-
AA22, Inadmissibility on Public Charge Grounds 28–32 (Aug. 2019).
118. The increase in denials for green cards will not be based solely on current or recent
benefit use but will also be based on immigration officers’ determinations that individuals are
likely to use benefits in the future considering the factors listed in the Regulation’s totality-of-the-
2 See Ted Hesson, Visa denials to poor Mexicans skyrocket under Trump’s State Department, Politico (Aug. 6, 2019), https://www.politico.com/story/2019/08/06/visa-denials-poor-mexicans-trump-1637094.
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circumstances test. This forward-looking aspect of the test is likely to reshape immigration, as the
non-partisan Migration Policy Institute’s research indicated that based on recent legal permanent
residents’ data, around 69% had at least one factor that would be construed negatively under the
Regulation, 43% have at least two factors, and 17% had at least three.3
119. Overall, the Regulation’s modification of the totality-of-the-circumstances test will
disproportionately exclude women, children, and older adults and will serve to facilitate or
prolong the separation of immigrant families, striking at the heart of the pro-family immigration
policy conceived in 1965. Under the Regulation, many citizens, both U.S. and foreign born, will
encounter new barriers to uniting with their families.
120. The majority of green card applications, especially in communities of color, are
family-based petitions that allow U.S. citizens and LPRs to reunite with their immediate family
members in the United States. The Regulation’s negatively weighted factors disproportionately
and detrimentally affect communities of color.
121. According to a study of recently admitted lawful permanent residents that was
submitted in comments, 60% of those from Mexico and Central America had at least two negative
factors, compared with only 27% of those from Europe, Canada, and Oceania. Forty-eight percent
of recent LPRs from the Caribbean, 41% from Asia, 40% from South America, and 34% from
Africa had at least two negative factors and thus would be excluded at a disproportionately higher
rate than those from Europe, Canada, and Oceania.
122. Defendants do not dispute the disparate impact. In fact, the previous purported
acting director of USCIS Kenneth Cuccinelli has tacitly admitted its presence. At a press briefing
on the Regulation, when asked about the fact that the majority of those affected by the Regulation
would likely be Latino, Cuccinelli responded that “if we had been having this conversation 100
3 Randy Capps, Mark Greenberg, Michael Fix, & Jie Zong, Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. Immigration, Migration Policy Institute, Nov. 2018, at 2.
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years ago, [the Regulation] would have applied more to Italians” than to other groups.4 And a day
later in an interview about the Regulation, Mr. Cuccinelli argued that “The New Colossus,” the
136-year-old sonnet inscribed at the base of the Statute of Liberty that welcomes “poor”
immigrants, referred to “people coming from Europe.”5
B. The Discriminatory Impact Is the Intended Purpose of the New Regulation.
123. The Trump Administration has made numerous efforts to suppress immigration
from non-white countries, including advocating an end to family-based immigration. Curtailing
immigration by people of color has been a thread uniting each of the Trump Administration’s
numerous attempts to change existing immigration law and regulations.
124. The Administration has promulgated numerous immigration-related executive
actions since January 2017, most either exclusively or disproportionately harming immigrants
from non-white-majority nations, including:
(A) Separating thousands of young children from their parents as a proclaimed
deterrent to immigration at the southern border;
(B) Refusing refuge to immigrants seeking asylum, and criminally prosecuting
asylum seekers for crossing the border between checkpoints;
(C) Initially suspending the refugee admission program and then slashing the
number of refugees who may be admitted from 110,000 to 30,000 in 2019,
and 20,000 in 2020;
(D) Ending the Deferred Action for Childhood Arrivals program;
(E) Terminating Temporary Protected Status for nationals of El Salvador,
Honduras, Haiti, Nepal, Sudan, and Nicaragua;
(F) Excluding nationals from several majority-Muslim countries; and
4 Chris Rodrigo, White House: New immigration policy meant to promote ‘self-sufficiency and personal responsibility’, The Hill (Aug. 12 2019), https://thehill.com/homenews/ administration/457093-white-house-defends-new-immigration-policy. 5 Jacey Fortin, ‘Huddled Masses’ in Statue of Liberty Poem Are European, Trump Official Says, N.Y. Times (Aug. 14, 2019), https://www.nytimes.com/2019/08/14/us/cuccinelli-statue-liberty-poem.html.
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(G) Expanding the exclusion of majority-Muslim countries to include primarily
African nations.
125. These attempted changes have occurred alongside a string of racist statements by
the President predating his seeking office and continuing through to the final days before the
Regulation’s promulgation, including:
(A) Rising to political prominence based upon the racist false claim that
President Obama was not born in the United States and/or had allegiance to
Kenya;6
(B) Running a campaign replete with racist aspersions about people of Mexican
descent and of the Muslim faith;7 and
(C) Wrongly slurring countries of the African diaspora by declaring while in
office that Haitians “all have AIDS”; that once Nigerians had seen the
United States, they would never go “back to their huts”; and that America
should not be a haven for “people from shithole countries,” allegedly
referring to Haiti and African nations, while stating that the U.S. should
instead have immigrants coming from places like Norway.8
126. Moreover, the President asserted the need to be “very careful” and to require
“totally proper documentation” from people fleeing devastation in the Bahamas caused by
6 Alexander Burns, Trump: Obama born in Kenya, Politico (May 25, 2012), https://www.politico.com/blogs/burns-haberman/2012/05/trump-obama-born-in-kenya-124569.
7 Matt Ford, Trump Attacks a ‘Mexican’ U.S. Federal Judge, Atlantic (May 28, 2016), https://www.theatlantic.com/politics/archive/2016/05/trump-judge-gonzalo-curiel/484790/; Maggie Haberman & Richard Oppel Jr., Donald Trump Criticizes Muslim Family of Slain U.S. Soldier, Drawing Ire, N.Y. Times (July 30, 2016), https://www.nytimes.com/2016/07/31 /us/politics/donald-trump-khizr-khan-wife-ghazala.html.
8 Michael Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/ us/politics/trump-immigration.html; Ali Vitali, Kasie Hunt, & Frank Thorp V, Trump referred to Haiti and African nations as 'shithole' countries, NBC News (Jan. 12, 2018), https://www.nbcnews.com/politics/white-house/trump-referred-haiti-african-countries-shithole-nations-n836946.
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Hurricane Dorian because of his belief that “very bad people and some very bad gang members
and some very very bad drug dealers” would be among them.9 He referred to migrant groups
mostly from Central America seeking asylum in the United States as “an invasion”10 and that
asylum seekers were “some of the roughest people you’ve ever seen.”11
127. Courts considering challenges to the Administration’s immigration policies have
routinely considered the President’s statements as evidence of discriminatory animus toward
immigrants of color.12
9 Jessica Kwong, Donald Trump Suggests ‘Very Bad’ People, Gangs and Drug Dealers in Bahamas Could Be Trying to Enter U.S., Newsweek (Sept. 9, 2019), Newsweek.com/trump-bad-people-gangs-bahamas-entering-1458384.
10 Jordan Fabian, Trump: Migrant Caravan ‘Is An Invasion’, The Hill (Oct. 29, 2018), https://thehill.com/homenews/administration/413624-trump-calls-migrant-caravan-an-invasion.
11 Michelle Mark, Trump Mocks Asylum-Seekers at the Border, Says They ‘Look Like They Should Be Fighting for the UFC’, Business Insider (Apr. 6, 2019), https://www.businessinsider.com/ trump-mocks-asylum-seekers-calls-system-scam-2019-4.
12 See, e.g., CASA de Md. v. Trump, 355 F. Supp. 3d 307, 325–26 (D. Md. 2018) (“Defendants do not suggest that President Trump’s alleged statements are not evidence of discriminatory motive on his part, nor could they. One could hardly find more direct evidence of discriminatory intent towards Latino immigrants.”); see also Arab Am. Civil Rights League v. Trump, 399 F. Supp. 3d 717, 729 (E.D. Mich. 2019) (denying post-Trump v. Hawaii motion to dismiss challenge to Muslim ban based, in part, on President Trumps anti-Muslim rhetoric); Int’l Refugee Assistance Project v. Trump, 373 F. Supp. 3d 650, 678 (D. Md. 2019) (same); NAACP v. DHS, 364 F. Supp. 3d 568, 578 (D. Md. 2019) (denying motion to dismiss Equal Protection Clause challenge to ending Temporary Protected Status (“TPS”) for Haitian nationals); Saget v. Trump, 375 F. Supp. 3d 280, 371–74 (E.D.N.Y. 2019) (same); La Union del Pueblo Entero v. Ross, 353 F. Supp. 3d 381, 395 (D. Md. 2018) (denying motion to dismiss, inter alia, Equal Protection claims regarding immigrants of color in challenge to adding citizenship question to 2020 Census); Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1108 (N.D. Cal. 2018) (granting preliminary injunction in challenge to decision to end TPS for El Salvador, Haiti, Honduras, and Nicaragua); Centro Presente v. DHS, 332 F. Supp. 3d 393, 415 (D. Mass. 2018) (denying motion to dismiss as to Equal Protection claim in challenge to ending TPS for El Salvador, Haiti, and Honduras); State of New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 810–11 (S.D.N.Y. 2018) (denying motion to dismiss in challenge to adding Census citizenship question); Regents of the Univ. of Cal. v. DHS, 298 F. Supp. 3d 1304, 1314–15 (N.D. Cal. 2018), aff’d 908 F.3d 476, 519–20 (9th Cir. 2019) (denying motion to dismiss as pertained to Equal Protection challenge to ending Deferred Action for Childhood Arrivals); Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 277–78 (E.D.N.Y. 2018) (same); Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Hawaii 2017) (granting temporary restraining order, in part on Equal Protection grounds, for second iteration of travel ban targeting Muslim-majority nations).
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128. While the Regulation was in final review at the Office of Management and Budget,
President Trump made statements linking his view of immigration and racial exclusion.
129. Specifically, on July 14, 2019, the President claimed that four women of color
serving in the United States Congress “originally came from countries whose governments are a
complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they
even have a functioning government at all)” and asked, “Why don’t they go back and help fix the
totally broken and crime infested places from which they came . . . .”
130. The President and the White House have been actively involved in pressing for the
Regulation.
131. For example, Senior Adviser to the President Stephen Miller had a “singular
obsession” with the public charge Regulation. He took issue with the approach of then-head of
USCIS, Francis Cissna, on changing the agency’s long-standing interpretation of public charge.
In a June 2018 email to Cissna, copying Chad Wolf (now the purported Acting Secretary of DHS),
Miller said “the timing on public charge is unacceptable . . . I don’t care what you need to do to
finish it on time.” In response to an email from then-USCIS Chief Counsel Craig Symons on how
USCIS will “do what we can to quickly move” the Regulation “back up to the Department and
then OMB [Office of Management and Budget],” Miller said that the head of OMB “Mick
[Mulvaney] promised the president.”13
132. In March 2019, during a meeting with officials covering immigration policy
priorities like the public charge Regulation and federal rules for detaining children, Miller told
staff that “You ought to be working on this regulation all day every day,” and that “[i]t should be
13 Nick Miroff, et al., Trump to place Ken Cuccinelli at the head of the country’s legal immigration system, Wash. Post (May 24, 2019), https://www.washingtonpost.com/ immigration/trump-to-place-ken-cuccinelli-at-the-head-of-the-countrys-legal-immigration-system/2019/05/24/143fdec8-7e64-11e9-a5b3-34f3edf1351e_story.html?utm_term=. 5ddcfc7451bc; Emails from Stephen Miller, June 8, 2018, available at https://www.politico.com/f/?id=0000016c-5349-de87-affd-7bc9eff20001.
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the first thought you have when you wake up. And it should be the last thought you have before
you go to bed. And sometimes you shouldn’t go to bed.”14
133. When the Regulation came out in August 2019, the then-acting director of USCIS,
Kenneth Cuccinelli, held press conferences on the Regulation and how “President Trump has once
again delivered on his promise” regarding immigration.15 As noted above, in response to a
question about how this new Regulation will target Latinos, Mr. Cuccinelli stated that “if we had
been having this conversation 100 years ago, it would’ve applied to more Italians.”
134. After changing the words to Emma Lazarus’s sonnet at the Statute of Liberty,
“Give me your tired and your poor,” by adding “who can stand on their own two feet and who will
not become a public charge,” Mr. Cuccinelli defended his rewriting of history, explaining “that
poem was referring back to people coming from Europe where they had class-based societies.”16
135. This was not Mr. Cuccinelli’s first foray into discriminatory language related to
immigration. While running for Governor of Virginia as state Attorney General, it came out that
during a radio interview, Mr. Cuccinelli had compared D.C.’s pest control policy to immigration
policy, saying the former was “worse than our immigration policy. You can’t break up rat
families.”17
14 Eileen Sullivan & Michael D. Shear, Trump Sees an Obstacle to Getting His Way on Immigration: His Own Officials, N.Y. Times (Apr. 14, 2019), https://www.nytimes.com/ 2019/04/14/us/politics/trump-immigration-stephen-miller.html.
15 Press Briefing by USCIS Acting Director Ken Cuccinelli (Aug. 12, 2019), https://www.whitehouse.gov/briefings-statements/press-briefing-uscis-acting-director-ken-cuccinelli-081219/.
16 Devan Cole & Caroline Kelly, Cuccinelli Rewrites Statue of Liberty Poem to Make Case for Limiting Immigration, CNN (Aug. 13, 2019), https://www.cnn.com/2019/08/13/politics/ken-cuccinelli-statue-of-liberty/index.html.
17 Nick Wing, Ken Cuccinelli Once Compared Immigration Policy To Pest Control, Exterminating Rats, Huffpost (July 26, 2013), https://www.huffpost.com/entry/ken-cuccinelli-immigration-rats_n_3658064.
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136. Mr. Cuccinelli also has echoed the President, referring to immigrants crossing the
southern border as an “invasion” and suggesting states “don’t have to keep them, no catch-and-
release, no nothing. You just point them back across the river and let them swim for it.”18
137. The Administration’s prior acting director of Immigration and Customs
Enforcement (“ICE”), Mark Morgan (now acting commissioner of U.S. Customs and Border
Protection), also dehumanized and engaged in blatant stereotyping and discrimination against
immigrants, saying of unaccompanied children in immigration detention that “I’ve looked at them
and I’ve looked at their eyes . . . and I’ve said that is a soon-to-be MS-13 gang member. It’s
unequivocal.”19
C. Defendants’ Unlawful Appointments Related to the Regulation
138. In addition to the above pattern of overt discrimination, Defendants manipulated
the leadership structure of DHS and USCIS in connection with their goal of issuing the
Regulation, as well as to further their other immigration policies motived by racial animus. These
actions violated federal law. In particular, Mr. Kevin McAleenan, purported Acting DHS
Secretary at the time the Regulation was promulgated, was appointed in contravention of the rules
established by the DHS statute and regulations governing the appointment of the Acting Director
of DHS and the FVRA. In addition, Mr. Kenneth Cuccinelli, purported Acting USCIS Director at
the time the Regulation was promulgated, was appointed in violation of the FVRA, which governs
the appointment of Acting USCIS Director. The illegality of those appointments renders the
Regulation invalid under the FVRA and makes it contrary to law under the APA.
18 John Binder, Exclusive-Ken Cuccinelli: States Can Stop Migrant Caravan “Invasion” With Constitutional War Powers, Brietbart (Oct. 23, 2018), https://www.breitbart.com/politics/ 2018/10/23/exclusive-ken-cuccinelli-statescan-stop-migrant-caravan-invasion-with-constitutional-war-powers/.
19 Ted Hesson, Trump’s Pick for ICE Director: I Can Tell Which Migrant Children Will Become Gang Members By Looking Into Their Eyes, Politico (May 16, 2019), https://www.politico.com/ story/2019/05/16/mark-morgan-eyes-ice-director-1449570.
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1. Statutory and Regulatory Regime for Appointment of DHS Acting Officials
139. As a general matter, the FVRA serves as the default rule for appointing acting
officials. But it can be superseded where “a statutory provision expressly authorizes the President,
a court, or the head of an Executive department, to designate an officer or employee to perform the
functions and duties of a specified office temporarily in an acting capacity; or designates an officer
or employee to perform the functions and duties of a specified office temporarily in an acting
capacity.” 5 U.S.C. § 3347(a)(1)(A)-(B).
140. The FVRA applies in full to the appointment of Mr. Cuccinelli, as there is no
statutory provision designating an alternative order of succession to that prescribed by the FVRA
for the position of Director of USCIS.
141. Under the FVRA, vacancies in an office requiring Presidential nomination and
Senate confirmation can only be filled on an acting basis by certain individuals. Specifically, such
a vacancy can be filled by “the first assistant to the office of such officer,” by a person who has
already been confirmed by the Senate for a different office, or by a person who, during the year
prior to the vacancy, served as an officer or employee in the same agency for at least 90 days. 5
U.S.C. § 3345(a).
142. Unlike with the Director of USCIS, the DHS Organic Statute provides an
alternative approach that supersedes § 3345(a) for the Acting Director of DHS. That statute states
that “[n]otwithstanding [the FVRA],” the order of succession if the DHS Secretary position is
vacant is first the Deputy Secretary, see 6 U.S.C. § 133(a)(1)(A), and then the Under Secretary for
Management, see id. § 133(g)(1). It also states that “Notwithstanding chapter 33 of title 5, the
Secretary may designate such other officers of the Department in further order of succession to
serve as Acting Secretary.” Id. § 133(g)(2). DHS’s Organic Statute does not otherwise supersede
any other provision of the FVRA.
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143. Pursuant to 6 U.S.C. § 133(g)(2), the DHS Secretary issued a Regulation adopting a
further order of succession in 2016.20
144. Under the APA, regulations may be challenged when adopted contrary to law, see 5
U.S.C. § 706, including, as relevant here, the FVRA or an agency’s organic succession statute.
2. Mr. McAleenan’s Appointment
145. On April 7, 2019, then-Secretary of DHS Kirstjen Nielsen tendered her resignation
effective the same day. At that time, the next in line to become Secretary if that office was vacant,
the Deputy Secretary position, was unfilled. That same day, President Trump tweeted that Mr.
Kevin McAleenan, the Commissioner of Customs and Border Protection, would assume the role
of Acting Secretary.
146. But Mr. McAleenan was statutorily foreclosed from becoming Acting Secretary.
Rather, under the DHS Organic Statute, the Under Secretary for Management—then held by
Claire Grady—was required to assume the acting role. See 6 U.S.C. § 113(g)(1).
147. Nielsen then announced that she would remain Secretary until April 10, 2019.
During that span, Under Secretary Grady resigned.
148. But Ms. Grady’s resignation did not render Mr. McAleenan’s appointment valid
under DHS’s organic statute. When there is neither a Senate-confirmed Deputy Secretary nor
Under Secretary for Management, DHS is required to abide by its self-prescribed Order of
Succession if it has issued one. See 6 U.S.C. § 113(g)(2) (providing that DHS may designate
succession beyond the Under Secretary for Management).
149. Prior to April 10, the Order of Succession in effect was promulgated by then-
Secretary Jeh Johnson on December 15, 2016. Pursuant to that Order of Succession, Mr.
McAleenan would have been eligible to serve as acting secretary only if DHS lacked a Senate-
20 Letter to Comptroller General Dodaro from Reps. Thompson and Maloney and attachments (Nov. 15, 2019), available at, https://oversight.house.gov/sites/democrats.oversight.house.gov/ files/191115%20T%20Dodaro%20re%20Letter%20to%20GAO%20on%20Wolf-Cuccinelli%20Appointment.pdf.
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confirmed officer in each of seven positions.21 Specifically, DHS would have to have vacancies in
the offices of the Secretary, Deputy Secretary, Under Secretary for Management, Administrator of
the Federal Emergency Management Administration, the Under Secretary for National Protection
and Programs, the Under Secretary for Science and Technology, and the Under Secretary for
Intelligence and Analysis.
150. On April 10, 2019—the same day as Ms. Grady’s resignation—Secretary Nielsen
amended that Order of Succession, but only for situations where the Secretary is incapable of
acting “during a disaster or catastrophic emergency.”22
151. Secretary Nielsen did not change the separate Order of Succession applicable “in
case of the Secretary’s . . . resignation, or inability to perform the functions of the office.” Id. As
a result, Secretary Nielsen’s actions did not change Mr. McAleenan’s position as eighth in line to
the acting secretary position.
152. At the time of Secretary Nielsen’s second resignation date, Senate-confirmed
appointees served as both the Under Secretary for National Protection and Programs and the
Under Secretary for Intelligence and Analysis. Mr. McAleenan was therefore third in line for the
acting secretary position, and could not be lawfully appointed to that position.
153. Despite being ineligible to do so, Mr. McAleenan purported to assume the role of
Acting Secretary on April 11, 2019. While invalidly serving in that position, Mr. McAleenan
issued the Regulation.23
21 See https://oversight.house.gov/sites/democrats.oversight.house.gov/files/ 191115%20T%20Dodaro%20re%20Letter%20to%20GAO%20on%20Wolf-Cuccinelli%20Appointment.pdf.
22 See Annex A, https://oversight.house.gov/sites/democrats.oversight.house.gov/files/ 191115%20T%20Dodaro%20re%20Letter%20to%20GAO%20on%20Wolf-Cuccinelli%20Appointment.pdf.
23 Because Mr. McAleenan was improperly appointed, his purported successor and current Acting Secretary Chad Wolf was also improperly appointed. Although there is a 210-day statutory limit on acting secretary service, see 5 U.S.C. § 3346, Mr. McAleenan served past that 210-day deadline. On November 8, 2019, the 211th day of his invalid service, Mr. McAleenan purported to again amend the Order of Succession at DHS. That succession amendment was necessarily invalid both because Mr. McAleenan was never a valid Acting Secretary, and even if he had been, McAleenan purported to make the amendment after the 210-day period for acting-secretary
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154. Although the DHS Organic Statute superseded the FVRA’s provision regarding
which officials can properly serve as Acting Secretary, see 5 U.S.C. § 3345(a), it does not
supersede any other provision of the FVRA, including § 3348(d), which states that any action
taken by an improperly appointed person “shall have no force or effect.”
155. Because Mr. McAleenan was not properly appointed pursuant to the DHS’s
Organic Statute and the regulation implementing it, his issuance of the Regulation was unlawful,
and has no force or effect under the FVRA. Additionally, it was consequently contrary to law
under the APA.
3. Mr. Cuccinelli’s Appointment
156. Mr. Cuccinelli was invalidly appointed as acting director of USCIS and his
Department-head-level involvement with the Regulation’s promulgation as leader of USCIS is in
violation of the FVRA and contrary to law under the APA.
157. At roughly the same time that Mr. McAleenan improperly assumed the office of
Acting DHS Secretary, President Trump’s principal advisor on immigration, Mr. Stephen Miller,
had been urging the removal of Mr. Francis Cissna, then the Senate-confirmed Director of USCIS.
On information and belief, Mr. Miller’s desire to remove Mr. Cissna was due at least in part to Mr.
Miller’s stance that Mr. Cissna was moving too slowly in implementing the Regulation, as noted
above.24
158. Mr. Cissna resigned effective June 1, 2019. At that time, Mr. Cuccinelli was being
considered by the Administration for a post within the Department of Homeland Security from
which he would “coordinate the administration’s immigration policies.”25 Mr. Cuccinelli had a
service expired. That same day, the Senate invoked cloture on the nomination of Defendant Chad Wolf to serve as the Under Secretary for Strategy, Policy, and Plans, which placed him next in line under the new succession order. On November 13, 2019, the Senate confirmed Mr. Wolf to that position. Mr. McAleenan resigned the same day and Mr. Wolf purported to assume the Acting Secretary role.
24 Supra, n.13.
25 Maggie Haberman & Zolan Kanno-Youngs, Trump Expected to Pick Ken Cuccinelli for Immigration Policy Role, N.Y. Times (May 21, 2019), available at, https://nyti.ms/30B3ZYb.
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long history of advocating for anti-immigrant policies. In addition to his conduct described above,
while Mr. Cuccinelli was a Virginia State Senator, he proposed bills to end birthright citizenship
and to allow firing of employees and denying unemployment benefits to anyone speaking a
language other than English at work.
159. On the date of Mr. Cissna’s resignation, June 1, 2019, Mr. Cuccinelli did not meet
any of the FVRA’s criteria for appointment to Director of USCIS. The position of first assistant
was then held by Mr. Mark Koumans. Mr. Koumans assumed the position of Acting Director of
USCIS on June 2, 2019. Shortly thereafter, the invalidly serving Acting Secretary McAleenan
created a new position at USCIS: “Principal Deputy Director.” Acting Secretary McAleenan
issued an order amending the succession procedure at USCIS and placing the just-created
Principal Deputy Director as second-in-command to the Director. Acting Secretary McAleenan
then appointed Mr. Cuccinelli to that purpose-made position—placing him above the Deputy
Director—and declaring him to be the acting director of USCIS as a result. Mr. Cuccinelli was
thus never a first assistant to any office as the existence of his job and appointment to the same
were simultaneous with his alleged elevation to the Acting Director role. This rendered his
appointment invalid under the FVRA. See L.M.-M. v. Cuccinelli, No. CV 19-2676 (RDM), 2020
WL 985376, at *15-19 (D.D.C. Mar. 1, 2020) (“[T]he Court concludes that Cuccinelli was
designated to serve as the acting Director of USCIS in violation of the FVRA.”).
160. Both Mr. Cuccinelli’s appointment and the change in succession noted that they
would terminate upon the appointment of a new Director of USCIS.
161. Mr. Cuccinelli was appointed before Acting Secretary McAleenan issued the
Regulation, and, on information and belief, Mr. Cuccinelli played an important role in
promulgating the Regulation as purported Acting Director of USCIS.26 Consistent with that
26 Ted Hesson & Anita Kumar, Cuccinelli Bores His Way Into Trump’s Inner Circle, Politico (July, 18, 2019), https://www.politico.com/story/2019/07/18/cuccinelli-immigration-trump-1598325 (“At USCIS, the agency he runs, Cuccinelli has powered ahead with major Trump administration initiatives such as the ‘public charge’ regulation, which could block immigrants from obtaining green cards if they use certain public benefits or are deemed likely to do so in the future.”); Brett Samuels, Unconfirmed by Senate, Cuccinelli Sees Power, Influence Grow on Immigration, The Hill (Sept. 1, 2019), https://thehill.com/homenews/administration/459474-
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involvement, Mr. Cuccinelli was the one to announce the Regulation’s promulgation, holding a
press conference the day it was promulgated and describing the Regulation as the President
“delivering on his promise to the American people.”27
D. Additional Harms Resulting from the Regulation
162. While the Regulation targets immigrants of color, it will have significantly broader
consequences for the country’s public health and the economy as a whole.
163. Defendants admit that the proposed Regulation will create the following harms
because individuals will be deterred from using important supplemental benefits:
(A) Worse health outcomes, including increased prevalence of obesity and
malnutrition, especially for pregnant or breastfeeding women, infants, or
children, and reduced prescription adherence;
(B) Increased use of emergency rooms and emergent care as a method of
primary health care due to delayed treatment;
(C) Increased prevalence of communicable diseases, including among members
of the U.S. citizen population who are not vaccinated;
(D) Increases in uncompensated care in which a treatment or service is not paid
for by an insurer or patient;
(E) Increased rates of poverty and housing instability; and
(F) Reduced productivity and educational attainment. Inadmissibility of Public
Inadmissibility of Public Charge Grounds, 84 Fed. Reg. at 41,364–66
(responding to comments regarding detriments of disenrollment by noting,
inter alia, “rigorous application of the public charge ground of
unconfirmed-by-senate-cuccinelli-sees-power-influence-grow-on (noting that after Cuccinelli’s invalid appointment, “USCIS rolled out three high profile policies in August,” including the public charge Regulation).
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inadmissibility will inevitably have negative consequences for some
individuals.”).
164. The proposed Regulation recognized that “reductions in federal and state transfers
under federal benefit programs may have downstream and upstream impacts on state and local
economies, large and small businesses, and individuals.” Inadmissibility of Public Charge
Grounds (NPRM), 83 Fed. Reg. at 51,118. The final Regulation acknowledged that reduced
program participation could result in higher poverty levels, reduced access to health care, and an
increase in severe and chronic health issues. See generally Inadmissibility of Public Charge
Grounds, 84 Fed. Reg. at 41,310–12 (detailing comments on effects of Regulation). In other
words, families will increasingly be poorer and less healthy.
165. Rather than contest commenters’ assertions, Defendants simply stated that it would
be “difficult to predict how this rule will affect aliens subject to the public charge ground of
admissibility.” Id., 84 Fed. Reg. at 41,313. DHS did not directly refute the numerous comments
estimating such impacts, did not address the chilling effect which necessarily does not require
estimating eligibility numbers, and conceded that it is not sure of the breadth of impact of the
Regulation.
166. The Regulation will create confusion and fear in immigrant communities and will
have a dramatic effect, potentially causing an estimated tens of millions of people to avoid seeking
services or to disenroll from core public-health and general-welfare programs. This includes
individuals subject to the public charge inquiry and individuals who are not subject to the
Regulation but who will nonetheless be dissuaded from applying for benefits for themselves and
their families. These harms defeat Defendants’ stated purpose of the Regulation because they
make it harder to achieve self-sufficiency for immigrants and their families, including their U.S.
citizen children. As immigration policy experts note, “public assistance can make someone less
likely to rely on government in the future” because “temporary use of public benefits can stabilize
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immigrants and families, putting them on a track to long-term financial stability and health.”28
While Defendants assert that altering the longstanding definition of “public charge” will save
costs, the long-term effect will be the exact opposite.
167. Deterring people from enrolling or remaining in vital programs that support their
health, food security, and ability to maintain housing will cause severe harm to the health and
welfare of communities across the country.
168. Reducing access to preventive care and vital health services will lead to a range of
negative health outcomes, including increased costs and rates of preventable disease, late
diagnoses, unmanaged chronic conditions, premature births, and early deaths. These effects will
reach far beyond the individuals who are subject to public charge determinations and will harm
significant numbers of U.S. residents regardless of their national origin or immigration status.
169. Deterring families from remaining in affordable housing will increase
homelessness and housing instability, leading to negative health outcomes and higher health care
costs. Lack of access to affordable housing will also lead to job instability and loss.
170. Reduction in use of SNAP benefits will increase food insecurity, which will lead to
negative health outcomes and correspondingly higher health-care costs.
171. U.S. citizen children living in mixed-status families are at particular risk. Evidence
shows that when parents lose access to health coverage, children are more likely to be uninsured.
The Regulation, therefore, is likely to increase the rates of uninsured children throughout the
country.
172. Reducing access to housing benefits will also result in severe and irreparable harm
to children, including impairment of cognitive development. SNAP benefits are particularly
important to mitigate the effects of poverty on children, and reducing access to these benefits will
have a negative impact on school attendance and performance, emotional and physical
development, and long-term health and achievement.
28 Matthew La Corte, The New ‘Public Charge’ Rule Will Harm the Rule of Law, Economic Growth, and Public Health, Niskanen Center (Aug. 28, 2018), https://niskanencenter.org/blog/the-new-public-charge-rule-will-harm-the-rule-of-law-economic-growth-and-public-health/.
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173. In addition to the direct impact on immigrants, their families, and their
communities, the new Regulation will have severely negative impacts on several sectors of the
economy.
174. For example, SNAP benefits have a high multiplier effect as they circulate through
the economy. Every dollar of SNAP translates to $1.79 in local economic activity.
175. Businesses that accept SNAP will be disproportionately harmed and may need to
close or cut back on carrying healthy, perishable foods that can be purchased with SNAP, which
will reduce the healthy food options available in these communities.
176. The direct health impacts of the new Regulation will create additional negative
economic consequences because people who are uninsured miss more work, tend to be less
productive when they are working, and are more likely to retire at younger ages because of health
issues and disability. Among working-age adults, there is a significant correlation between food
insecurity and chronic disease, including conditions that can limit an individual’s ability to work.
177. Moreover, Medicaid supports hospitals, health centers, and other community
providers that are critical sources of care for low-income people and the broader community. By
reducing Medicaid enrollment, these providers will lose a primary source of funding, significantly
increasing the risk that hospitals and other providers will close or offer fewer services. When
health centers and other community providers close or reduce services, individuals have to rely on
more costly emergency care to address acute medical conditions.
178. The impacts of hospital closures and reductions are far-reaching. They push
providers to leave in their wake, and will affect access to care for all residents of their service
areas, particularly for rural communities, which generally have difficulty attracting health care
providers.
179. Hospital closures and cutbacks also harm local economies, as hospitals are major
employers and purchasers of goods and services. Moreover, communities without hospitals find it
more difficult to attract new industries, companies, and job seekers and thus grow their economies.
180. The Regulation will also have destabilizing effects on several other critical sectors
of the economy. For example, the public charge Regulation will disadvantage farmworkers who
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are adjusting to lawful permanent resident status, as these low-wage workers will find it difficult
to satisfy the new public charge test. Farmworker families will disproportionately have a number
of factors negatively weighed against them, including their income, lack of credit history and
health insurance, household-size, lack of education and skills, and lack of English proficiency.
The Regulation will also chill access to services for farmworkers who seek to apply for or extend
their nonimmigrant H-2A visas, as well as their family members.
181. The public charge Regulation will also destabilize the health care workforce—a
sector with a sizable immigrant population that relies on access to public programs. For example,
approximately 24% of direct care workers—comprising home health aides, personal care aides,
and nursing assistants—are foreign-born, and approximately 40% of foreign-born direct care
workers receive public benefits.29 The Regulation will force some workers to choose between
securing benefits and potentially undermining their opportunity to extend or change their
nonimmigrant visas or adjust their status. Others who would not be subject to the Regulation will
nonetheless refrain from seeking benefits to which they are entitled for fear of potential
consequences. If these individuals forgo access to benefits, and in particular health care benefits,
they will miss more work days and burden the vulnerable population whom they serve—a
population that consists overwhelmingly of older adults and U.S. citizens.
182. The administrative and adjudicative burdens imposed by the new Regulation and
the accompanying paperwork will cause significant delays in access to immigration benefits and
work authorization for all applicants. These delays will prevent affected individuals from being
able to support themselves and their families.
29 Robert Espinoza, Immigrants and the Direct Care Force, Paraprofessional Healthcare Institute, June 2017, at 4–5, available at https://phinational.org/wp-content/uploads/ 2017/06/immigrants_and_the_direct_care_workforce_-_phi_-_june_2017.pdf.
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FIRST CLAIM FOR RELIEF
ADMINISTRATIVE PROCEDURE ACT
THE CHALLENGED REGULATION IS CONTRARY TO THE STATUTORY SCHEME
ESTABLISHED BY CONGRESS
5 U.S.C. § 706
183. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
184. The Regulation is a final agency action and subject to judicial review.
185. The APA prohibits agency action that is “not in accordance with law” or is “in
excess of statutory jurisdiction, authority, or limitations, or short of statutory right.”
186. The Regulation’s definition of “public charge” is contrary to the plain and well-
established meaning of that phrase, and to how it has been interpreted and applied since 1882.
With knowledge of those interpretations and applications, Congress has repeatedly declined to
change the longstanding definition of “public charge.”
187. The new public charge definition is an unreasonable interpretation of and contrary
to the meaning of “public charge” in Section 1182. The Regulation uses the public charge ground
of inadmissibility to penalize the receipt of or likely use of certain public benefits even though
Congress has repeatedly rejected efforts to do precisely that.
SECOND CLAIM FOR RELIEF
ADMINISTRATIVE PROCEDURE ACT
THE CHALLENGED REGULATION IS ARBITRARY AND CAPRICIOUS OR
OTHERWISE NOT IN ACCORDANCE WITH LAW
5 U.S.C. § 706
188. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
189. The APA prohibits agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
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190. The Regulation is arbitrary and capricious because it departs from decades of prior
law and practice without adequate explanation.
191. The changes in policy are substantive and highly consequential, and they require a
showing that there are good reasons for the new policy, which Defendants have failed to provide.
192. Defendants failed to consider all relevant factors and articulate a rational
connection between the facts found and the decisions made. In fact, Defendants have offered
explanations for their decisions that run counter to the evidence before the agency.
193. The Regulation sets forth a number of different factors, some weighted more than
others, to determine whether an applicant is likely to become a public charge. These weighted
factors are not reasonably related to determining whether an individual is likely to become a
public charge. Indeed, even under Defendants’ expanded definition of “public charge,” these
various considerations do not predict a likelihood that an individual will receive benefits.
194. Defendants failed to consider that the factors are so vague they invite arbitrary or
discriminatory enforcement.
195. The Agency ignored or failed to adequately consider important aspects of the
problem, including evidence that the Regulation would cause harm by penalizing the use of
housing, health care, and nutritional assistance benefits.
196. The Agency failed to adequately consider the harms caused by the chilling effect of
the Regulation.
197. The Agency failed to adequately consider the racially disparate impact of the
policy.
198. In addition, although the Regulation provides several purported rationales for the
changes it makes to the public charge inquiry, those purported rationales are arbitrary, irrational,
not supported by the evidence in the record, and a pretext that conceal the true motivation, which
is to dismantle the family-based immigration system and make it more difficult for non-white
immigrants to remain in the United States. Even on their own terms, the explanations for the
Regulation are arbitrary and capricious.
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199. Defendants have also failed to adequately address the public comments that were
submitted in response to the proposed Regulation.
200. USCIS and DHS were improperly influenced in their rulemaking process by the
political motivations of individuals within the Trump Administration.
THIRD CLAIM FOR RELIEF
ADMINISTRATIVE PROCEDURE ACT
THE CHALLENGED REGULATION IS ARBITRARY AND CAPRICIOUS OR
OTHERWISE NOT IN ACCORDANCE WITH LAW
5 U.S.C. § 706
201. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
202. The APA prohibits agency action that is “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right” or “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
203. Mr. McAleenan, who promulgated the Regulation, was serving in violation of
DHS’s organic statute and DHS’s regulations promulgated pursuant to that statute at the time of
the Regulation’s issuance. As a result, the Regulation is not in accordance with law and without
observance of procedure required by law under 5 U.S.C. § 706.
FOURTH CLAIM FOR RELIEF
ADMINISTRATIVE PROCEDURE ACT
THE CHALLENGED REGULATION IS ARBITRARY AND CAPRICIOUS OR
OTHERWISE NOT IN ACCORDANCE WITH LAW
5 U.S.C. § 706
204. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
205. The APA prohibits agency action that is “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right” or “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
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206. Mr. Cuccinelli, who was the Acting Director of USCIS at the time the Regulation
was promulgated and, on information and belief, was involved in the Regulation’s promulgation,
was serving in violation of the FVRA. As a result, the Regulation is not in accordance with law
and without observance of procedure required by law under 5 U.S.C. § 706.
FIFTH CLAIM FOR RELIEF
FEDERAL VACANCIES REFORM ACT,
5 U.S.C. § 3345 ET SEQ.,
AND DHS ORGANIC STATUTE,
6 U.S.C § 113
207. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
208. The Federal Vacancies Reform Act is the exclusive means for filling offices whose
appointments are required to be made by the President with the advice and consent of the Senate
unless a statute provides otherwise. It also provides that any action taken by an improperly
appointed person has no force or effect.
209. The DHS Organic Statute authorizes the Secretary of DHS to promulgate an order
of succession other than that of the FVRA, notwithstanding the FVRA. See 6 U.S.C. § 113(g)(1)-
(2).
210. Since December 2016, DHS has adopted an order of succession different from the
one in the FVRA. DHS may not disregard its own regulations, including those governing the
order of succession. See generally United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260
(1954).
211. Mr. McAleenan was not eligible to be appointed Acting Secretary under 6 U.S.C.
§ 113(g) and its implementing regulation.
212. Under the FVRA, Mr. McAleenan’s promulgating the Public Charge Regulation
constituted an action, see 5 U.S.C. § 3348(a)(1); see also id. § 551(13), and the performance of a
“function or duty,” id. § 3348(a)(2).
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213. As an invalid appointee, Mr. McAleenan’s actions have “no force or effect” and
“may not be ratified.” Id. § 3348(d).
SIXTH CLAIM FOR RELIEF
FEDERAL VACANCIES REFORM ACT,
5 U.S.C. § 3345 ET SEQ.,
214. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
215. The Federal Vacancies Reform Act is the exclusive means for filling offices whose
appointments are required to be made by the President with the advice and consent of the Senate
unless a statute provides otherwise. It also provides that any action taken by an improperly
appointed person has no force or effect.
216. Mr. Cuccinelli was not eligible to be appointed Acting Director of USCIS under 5
U.S.C. § 3345(a).
217. Under the FVRA, Mr. Cuccinelli’s involvement, on information and belief, in the
process of reviewing, finalizing, and promulgating the Public Charge Regulation constituted an
action, see 5 U.S.C. § 3348(a)(1); see also id. § 551(13), and the performance of a “function or
duty,” id. § 3348(a)(2).
218. As an invalid appointee, Mr. Cuccinelli’s actions have “no force or effect” and
“may not be ratified.” Id. § 3348(d).
SEVENTH CLAIM FOR RELIEF
FIFTH AMENDMENT (EQUAL PROTECTION)
THE REGULATION DISCRIMINATES AGAINST NON-WHITE IMMIGRANTS
219. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
220. The Fifth Amendment contains an implicit guarantee of equal protection that
invalidates any official action that reflects a racially discriminatory intent or purpose.
Classifications based on race, ethnicity, or national origin are subject to strict scrutiny, and even
facially neutral policies and practices will be held unconstitutional when they reflect a pattern
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unexplainable on grounds other than racial discrimination. Bolling v. Sharpe, 347 U.S. 497, 499
(1954); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).
221. Defendants acted with improper discriminatory intent and bias against non-white
immigrants in promulgating the Regulation.
222. Multiple tweets, statements, speeches and other actions by President Trump and his
administration demonstrate racial animus toward non-white immigrants that underlie the
Regulation.
223. The Regulation is unconstitutional because its promulgation was motivated, at least
in part, because of, and not merely in spite of, its adverse effects on non-white immigrants. Pers.
Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
224. Defendants promulgated the Regulation with full knowledge that it would have a
disproportionate impact on non-white immigrants’ ability to obtain green cards and extend non-
immigrant visas.
225. The history and sequence of events leading up to the promulgation of the
Regulation were irregular, indicate a predetermined outcome not based on an objective
assessment, and reveal that the Trump Administration’s animus for non-white immigrants drove
the decision to adopt the Regulation.
226. Plaintiffs will suffer irreparable injury resulting from the implementation of the
unconstitutional Regulation.
EIGHTH CLAIM FOR RELIEF
DECLARATORY JUDGMENT ACT
THE REGULATION IS INVALID BECAUSE IT WAS ISSUED BY AN UNLAWFULLY
APPOINTED AGENCY DIRECTOR
227. Plaintiffs will suffer irreparable injury resulting from the implementation of the
unconstitutional Regulation.
228. Plaintiffs repeat and incorporate by reference each allegation contained in the
preceding paragraphs as if fully set forth herein.
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229. The Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. provides that “in a case of
actual controversy within its jurisdiction . . . , any court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal relations of any interested party
seeking such declaration, whether or not such further relief is or could be sought.” Id. § 2201(a).
The Court has equitable jurisdiction to enjoin “violations of federal law by federal officials,”
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015); Free Enter. Fund v. Pub.
Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (there is an “implied private right of
action directly under the Constitution to challenge governmental action under the Appointments
Clause”).
230. Mr. McAleenan and Mr. Cuccinelli were appointed in violation of the
Appointments Clause, the Federal Vacancies Reform Act, and DHS’s Organic Statute. Plaintiffs
are entitled to a declaration that the Regulation is invalid because both Mr. McAleenan’s
designation as Acting Secretary and Mr. Cuccinelli’s designation as acting head of USCIS
violated federal law and Mr. McAleenan promulgated the Regulation with, on information and
belief, Mr. Cuccinelli’s involvement.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court:
1. Vacate the Regulation as arbitrary, capricious, an abuse of discretion, otherwise not
in accordance with law, and without observance of procedure as required by law, in violation of
the Administrative Procedure Act and the United States Constitution;
2. Declare the Regulation unconstitutional as violating the equal protection guarantee
of the Fifth Amendment of the U.S. Constitution;
3. Declare that the Regulation has no force or effect under the Federal Vacancies
Reform Act and the Declaratory Judgment Act;
5. Enjoin the Department and all its officers, employees and agents from
implementing, applying, or enforcing the Regulation;
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6. Declare the appointments of Mr. McAleenan as Acting Secretary of DHS and
Defendant Cuccinelli as Acting Director of USCIS invalid under the Appointments Clause, the
DHS Organic Statute, and the Federal Vacancies Reform Act;
7. Award Plaintiffs their costs and reasonable attorney’s fees as appropriate; and
8. Grant such further and other relief as this Court deems just and proper.
Respectfully submitted,
Dated: May 20, 2020 By: /s/ Nicholas Espíritu NICHOLAS ESPIRITU (SBN 237665)
[email protected] LINTON JOAQUIN (SBN 73547) [email protected] ALVARO M. HUERTA (SBN 274787) [email protected] MAYRA B. JOACHIN (SBN 306065) [email protected] NATIONAL IMMIGRATION LAW CENTER 3450 Wilshire Boulevard, #108-62 Los Angeles, CA 90010 Telephone: (213) 639-3900 Fax: (213) 639-3911
ANTIONETTE DOZIER (SBN 244437) [email protected] ROBERT D. NEWMAN (SBN 86534) [email protected] DAVID KANE (SBN 292186) [email protected] WESTERN CENTER ON LAW & POVERTY 3701 Wilshire Boulevard, Suite 208 Los Angeles, CA 90010 Tel: (213) 487-7211 Fax: (213) 487-0242
MARTHA JANE PERKINS (SBN 104784) [email protected] NATIONAL HEALTH LAW PROGRAM 200 N. Greensboro Street, Ste. D-13 Carrboro, NC 27510 Tel.: (919) 968-6308 Fax: (919) 968-8855
TANYA BRODER (SBN 136141) [email protected] NATIONAL IMMIGRATION LAW CENTER
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2030 Addison Street, Suite 420 Berkeley, CA 94704 Telephone: (510) 663-8282 Fax: (213) 639-3911 JOANNA ELISE CUEVAS INGRAM** (SBN 290011) [email protected] NATIONAL IMMIGRATION LAW CENTER P.O. Box 170392 Brooklyn, NY 11217 Telephone: (213) 377-5258 Fax: (213) 377-5258 MAX S. WOLSON* [email protected] NATIONAL IMMIGRATION LAW CENTER P.O. Box 34573 Washington, D.C. 20043 Telephone: (202) 216-0261 Fax: (202) 216-0266 KEVIN HERRERA* [email protected] NATIONAL IMMIGRATION LAW CENTER P.O. Box 32358 Chicago, IL 60632-0358 Telephone: (213) 770-1325 Fax: (213) 770-1325 **Admitted to Practice in New York and California
Attorneys for Plaintiffs LA CLÍNICA DE LA RAZA; CALIFORNIA PRIMARY CARE ASSOCIATION; MATERNAL AND CHILD HEALTH ACCESS; FARMWORKER JUSTICE; COUNCIL ON AMERICAN ISLAMIC RELATIONS-CALIFORNIA; AFRICAN COMMUNITIES TOGETHER; LEGAL AID SOCIETY OF SAN MATEO COUNTY; CENTRAL AMERICAN RESOURCE CENTER, and KOREAN RESOURCE CENTER
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